Exhibit 10.7.5
ADDENDUM TO BLUE SHIELD LICENSE AGREEMENT
This Blue Shield License Agreement is made by and
between Blue Shield and Blue Shield Association ("BCBSA") and the
Blue Shield Plan known as Blue Cross and Blue Shield of Missouri
(the "Plan").
Preamble
WHEREAS, BCBSA is the owner of the BLUE SHIELD and the
BLUE SHIELD Design service marks (collectively the "Licensed
Marks");
WHEREAS the Plan was given the right to use the
Licensed Marks as service marks for health care plans in its
service area and the right to use BLUE SHIELD in its trade and/or
corporate name (the "Licensed Name");
WHEREAS, BCBSA has informed the Plan that the Plan's
Blue Shield License Agreement automatically terminated pursuant
to paragraph 15(a)(viii) of that License Agreement as a result of
an order entered by the Circuit Court of ▇▇▇▇, County, Missouri
dated October 29, 1998 (the "Missouri Order") in certain
litigation pending among and between the Plan, the Missouri
Department of Insurance, and the Attorney General of the State of
Missouri (the "Litigation");
WHEREAS, the Plan has informed BCBSA that: (i) the
Plan believes that because the Missouri Order was void and was
vacated as void ab initio six days after it was entered, it was
not effective and did not result in the automatic termination of
the Plan's Blue Shield License Agreement; (ii) the Plan contends
its Blue Shield License Agreement remains in effect; and (iii) to
avoid the expense and delay of litigation and to clarify its
right to continue to use the Licensed Marks and Licensed Name,
the Plan is willing to accept benefits and rights under, this
Addendum to Blue Shield License Agreement;
WHEREAS, BCBSA has determined that it is in the best
interest of the Licensed Marks, BCBSA, and its member Plans to
grant the Plan a Blue Shield license pursuant to the terms of the
Blue Shield License Agreement as amended by this Addendum to Blue
Shield License Agreement;
NOW THEREFORE, in consideration of the foregoing and
the mutual agreements hereinafter set forth and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
Addendum
1. BCBSA hereby grants the Plan, upon the terms,
covenants, and conditions of the Blue Shield License Agreement
attached hereto (the "Full License") as amended by this Addendum
to Blue Shield License Agreement ("Addendum"), the right to use
the Licensed Name in its trade and/or corporate name and the
right to use the Licensed Marks in the sale, marketing, and
administration of health care plans and related services in its
licensed service area. Notwithstanding any provision to the
contrary in the Full License, paragraphs 1 through 8 of this
Addendum shall control to the extent they conflict with any
terms, conditions, or covenants of the Full License. The term
"Agreement" as used in the Full License shall be construed to
include this Addendum.
2. The Plan releases any and all claims, causes of
action, actions, suits, or any demands whatsoever against BCBSA
or any of its Member Plans, whether at law or equity, whether in
judicial, arbitral, or alternative fora, and whether known or
unknown, that the Plan now has or may have had on behalf of
itself or any other person or entity at any time prior to and
including the date hereof, or hereafter can, shall, or may have
or claim to have, arising out of or in any way related to the
aforementioned alleged automatic termination.
3. BCBSA releases any and all claims, causes of
action, actions, suits, or any demands whatsoever against the
Plan, whether at law or equity, whether in judicial, arbital, or
alternative fora, and whether known or unknown, that BCBSA now
has or may have had on behalf of itself or any other person or
entity at any time prior to and including the date hereof, or
hereafter can, shall, or may have or claim to have, arising out
of or in any way related to the aforementioned alleged automatic
termination.
4. The Plan warrants that, apart from the Litigation,
it is in compliance with all, and has no plans to engage in
conduct that would violate any, BCBSA rules and regulations,
including all provisions of this Addendum. The Plan warrants
that there is no imminent risk of dissolution of the Plan or of
the appointment of a trustee, interim trustee, receiver, or other
custodian for any of the Plan's business or property. The Plan
shall immediately provide BCBSA's General Counsel with copies of
all pleadings and orders in the Litigation upon receipt and shall
regularly update BCBSA's General Counsel on the Litigation. If
at any time after the effective date of this Addendum the Plan
becomes aware of any event that indicates that the Plan or any of
its licensed Controlled Affiliates is in imminent danger of
dissolution, the Plan shall immediately notify BCBSA's General
Counsel in writing.
5. All disputes related to the termination of the
Plan's licenses shall be adjudicated exclusively in a United
States District Court, or if that Court does not have subject
matter jurisdiction, in a Court with competent jurisdiction in
Illinois. The Plan shall not claim that a Court in Illinois
lacks personal jurisdiction over the Plan concerning any such
dispute, nor that a Court in Illinois is an improper or
inconvenient venue for any such dispute.
6. The provisions of paragraph 15(d)(i) of the Full
License related to notice to customers, and the provisions of
paragraph 15(d)(iii) of the Full License related to the
reestablishment fee, shall not apply to the alleged automatic
termination triggered by the Missouri Order. The BCBSA Board of
Directors' March 12, 1998 resolution relating to the Plan's
licenses is superseded by the terms of the Full License as
amended by this Addendum, provided, however, that paragraph
15(a)(vii) of the Full License shall not apply with respect to
the Litigation and is superseded by paragraph 8 of this Addendum.
7. The Full License as amended by this Addendum shall
automatically terminate upon any judicial act which: (i)
provides that, or approves a transaction pursuant to which, a
person, entity or group other than licensees of BCBSA, acquires
the ability to select the majority of the members of the Board of
Directors of the Plan or any of its Larger Controlled Affiliates
or otherwise gains control of the Plan or Larger Controlled
Affiliates; or (ii) changes the composition, or the voting rights
of the members, of the Board of Directors of the Plan or any of
its Larger Controlled Affiliates. This paragraph shall not apply
to a settlement or resolution of the Litigation that complies
with all BCBSA rules, regulations, and standards and is approved
by or conditioned on the approval of BCBSA.
8. The Full License as amended by this Addendum shall
automatically terminate on March 11, 1999, unless the BCBSA Board
of Directors takes affirmative action to extend the license on or
before the scheduled Board meeting on March 11, 1999.
9. The Full License as amended by this Addendum shall
be deemed effective as of October 29, 1998.
IN WITNESS HEREOF, the parties have caused the Full License as
amended by this Addendum to Blue Shield License Agreement to be
executed, effective October 29, 1998:
BLUE CROSS AND BLUE SHIELD ASSOCIATION:
By: /s/ ▇▇▇▇▇ ▇. SEROTO
Title: EXECUTIVE VICE PRESIDENT & COO
Date: NOVEMBER 19, ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇'▇▇▇▇▇▇
Title: PRESIDENT
Date: NOVEMBER 19, 1998
